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LIBRARY OF CONGRESS. 



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UNITED STATES OF AMERICA. 



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The Dutch in America. 



h HISTORICAL ARGUMENT 



WiixiAM Henry Arnoux. 




New York. 

privately printed. 

1890. 



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PREFACE. 



The following pages were presented to the Court 
of Appeals in the State of New York as an argu- 
ment in an elevated railroad case then pending, in 
which the fundamental question involved was 
whether the Dutch Roman law prevailed in Man- 
hattan Island before 1664, under which law the 
railroad claimed that the State absolutely owned 
the streets and that adjacent owners had no rights 
or easements therein. This question depended 
upon the determination of the historical question 
who, under the law of nations, discovered and 
settled New York. To aid the Court in the solution 
of this problem this argument was written. 



THE DUTCH IN AMERICA. 



In 1632, when the ambassador of the Netherlands 
at the Court of St. James, entered into diplomatic 
correspondence with the government to which he 
was accredited, on behalf of the Dutch West India 
Company, to obtain the release of a Dutch vessel 
which was detained in an English port, "it pro- 
voked," says Mrs. Lamb, in her History of New 
York, "another spirited correspondence between 
the two nations. The Dutch statesmen claimed that 
they had discovered the Hudson River in 1609, that 
some of tlieir people had returned there in 1610 ; 
that a specific trading charter had been granted in 
1614 ; that a fort and garrison had been maintained 
there until the formation, in 1623, of the West 
India Company, which has since occupied the 
country, and great stress was laid upon the pur- 
chase of the land from its aboriginal owners." 
Subsequently other claims were made that events 
showed the exercise and recognition of sovereignty 
between 1611 and 1653, and of a title under the 
grant made of the New World to Spain by Pope 
Alexander VH. These we shall consider in the fol- 
lowing order : 

1. Title by purchase from the Indians. 

2. Title by the discovery of Hudson. 

3. Title under the Borgian grant to Spain. 

4. Title acquired after 1611 (exclusive of the 
Indian purchase). 



6 



It was never contended that either by original 
recognition or by subsequent acquiescence, the Eng- 
lish had estoi)ped themselves from asserting what- 
ever riglits tliey may have at any time acquired, and 
after examining the claims above set forth it will be 
shown herein that such contention would have been 
without the slightest justitication. 

1. Title by 'purchase from the Indians. 

In 1626, it has been asserted, the Governor of the 
Dutch West India Company bought the Island of 
Manhattan, then supposed to contain 24,000 acres 
of laud, for the paltry sum of twenty-four dollars. 
If a document preserved in the collection of the 
Pennsylvania Historical Society is genuine, this 
was a fraudulent transaction. The unscrupulous 
Dutchman negotiated with the tribe of the Man- 
hatoes, who occupied the island, and whose wig- 
wams were located on the shore of the little lake 
afterwards called the Collect, which was situated be- 
tween Broadway and the Bowery, having its outlet 
eastwardly into the East River, for a piece of land 
foi- his back garden. When the bargain was con- 
summated he claimed the whole island beyond his 
house. Without discussing the morality of the 
matter vre shall accept the Dutch version as pre- 
sented in the address of the Assembly of XIX. to the 
States-General, in Oct., 1634, which was as follows : 
" After the county had passed into the hands of the 
incorporated West India Company, said company 
purcliased from the Indians, who were the indubita- 
ble owners thereof, the Island of Manhattan, situate 
at the entrance of said river, and there laid the 
foundation of a city," and examine only the legal 
effect. 

" America, separated from Europe by a wide 
ocean," says Ch.-J. Marshall, in the case of Wor- 
cester vs. State of Georgia, 6 Peters, 574, "was in- 
habited by a distinct people, divided into separate 
nations, independent of each other, and of the rest 



of the world, having institutions of their own and 
governing themselves by their own laws. It is diffi- 
cult to comprehend the proposition that the inhabi- 
tants of either quarter of the globe could have right- 
ful original claims of dominion over the inhabitants 
of the other, or over the land they occupied, or that 
the discovery of either by the other should give the 
discoverer right in the country he discovered, which 
annulled the pre-existing rights of its ancient pos- 
sessors." 

In Johnson vs. Mcintosh, 8 Wheat., 543, 591, the 
same great jurist said : " However extravagant the 
pretension of converting the discovery of an inhabi- 
ted country into conquest may appear; if the princi- 
ple has been asserted in the first instance, and after- 
wards sustained; if a country has been acquired and 
held under it; if the property of the great mass of 
the community originates in it, it becomes the law 
of the land, and cannot be questioned. So, too, 
with respect to the concomitant principle that the 
Indian inhabitants are to be considered merely as 
occupants to be protected indeed, while in peace, in 
the possession of their land, but to be deemed inca- 
pable of transferring the title to others ; however 
this restriction may be opposed to natural right, and 
to the usage 6f civilized nations, yet if it be indis- 
pensable to that system under which the country 
has been settled, and be adapted to the actual condi- 
tion of the two people, it may perhaps be supported 
by reason, and certainly cannot be rejected by 
courts of justice." 

" So far as respected the rights of the crown no 
distinction was taken between vacant land and land 
occupied by the Indians. The title, subject only to 
the right of occupancy of the Indians, was admitted 
to be in the king." 

Subsequently the same question was discussed by 
Ch.-J. Taney in Martin vs. Waddell, 16 Pet., 867, 
and it was there decided that the Indians were 
simply tenants, having only a usufructuary interest 



8 



in the soil, without any title thereto ; but, as Mar- 
shall said, only the rightful sovereign could acquire 
such right. 

As it is said in Wadsworth vs. Buffalo Hydraulic 
Association, 15 Barb., 89: "It is true that the 
Indian title has been styled simply a right of occu- 
pancy, and the European sovereigns discovering the 
country claimed the ultimate title. The course, 
however, adopted was to acquire the title of the 
Indians by treaty, and the right to make treaties 
appertained to the sovereignty." 

This whole question has been disposed of in a 
single sentence of Brown, J., in the Town of South- 
ampton vs. The Mecox Bay Oyster Co., 116 N. Y., 7: 
" Nor did the Indians have any title to the land 
which they could grant, and which could be recog- 
nized in the courts of this country." 

This is not a new principle of law announced in this 
countiy, or in this century. It was the settled doc- 
trine of Europe in the sixteenth century, and it 
could not be successfully controverted by the Jurists 
of Holland. They were therefore compelled to sup- 
plement it by the assertion that they were the origi- 
nal discoverers of the region, and therefore the 
Indian title ratified that which they had previously 
acquired. 

Unless it can be established that the Dutch were 
the discoverers it inevitably follows that their Indian 
title was a nullity. 

2. Title hy the discovery of Hudson. 

It is an incontrovertible fact that our first accu- 
rate and definite knowledge of the existence of the 
noble river that bears the name of Hudson is due to 
that intrepid navigator. There was a corporation 
in England named the Muscovy Company, in whose 
service Henry Hudson had made several voyages in 
the northern seas, in which he had made such a 
reputation that the East India Company employed 



9 



him to discover a route to India by way of Green- 
land. • Of course the attempt was a failure. He was 
engaged by said company to make a second voyage, 
in which, adopting the suggestion of Capt. John 
Smith, he sailed to Maine, and on the 4th day of 
September, 1609, reached the Hudson River, which 
he hoped would prove an arm of the South Sea, and 
by which he could accomplish his desired end. He 
ascended the river as far as Albany, where he dis- 
covered that the river which he supposed would 
lead him to India was becoming an unnavigable 
stream. He therefore abandoned the attempt, re- 
turned to England, and never visited the place 
again. 

This, however, alone does not establish that he 
was the discoverer, either actually or in a legal 
sense. The English have never disputed that Hud- 
son made this voyage. On the contrary, they were 
proud of it, and they, not the Dutch, gave his name 
to the liver. They base their claim upon priority. 
Each government acknowledges the same principle 
of law. 

" We derive our riglits in America," said Ed- 
mund Burke, "from the discovery of Sebastian 
Cabot, who first made the North American conti- 
nent in 1497. The fact is sufficiently certain to 
establish a right to our settlements in America." 
" To this discovery," says Marshall, in Johnson vs. 
Mcintosh, 8 Wheat., 576, "the English trace their 
title." The same view is presented by Taney : 
" The English possession in America was not 
claimed by right of conquest, but by right of dis- 
covery." 

Every historian, every geographer, every jurist 
and every English statesman concur on this point. 
What is the fact '( 

The discovery of Columbus aroused the curiosity 
and the cupidity of all Europe. The news of a new 
world stimulated every adventurer in every other mar- 
itime country to find a new course to the Indies. A 



10 



refugee from Venice, whose anglicized name was 
John Cabot, who resided in Bristol, then the chief 
port of England, petitioned Henry VII., King of 
England, to authorize him to embark on a voyage 
of discovery. The King made the grant with that 
frugal mind that made him the richest sovereign in 
Europe, on condition that he should receive one- 
seventh of the profits of the voyage. The merchants 
of Bristol provided him with a fleet and its equip- 
ments, and, with his three sons, he set sail for Ice- 
land; thence changing his course to the westward, he 
eventually reached land which he supposed, to the 
day of his death, was the eastern coast of Asia, in the 
territory of the Grand Cham. It was on St. John's 
Day, the 10th day of June, 1497, that he landed. 
It was on the coast of Labrador, and is supposed to 
have been Cape Breton. The exact spot can never 
be absolutely determined. It is certain that he first 
in modern times discovered and landed upon the 
continent of America. Following the custom of the 
times, when he landed he planted first the cross, then 
the English standard, and finally the banner of St. 
Mark's, the ensign of his beloved Venice. He then 
formally took possession of the territory in the 
name of the King of England, and named it St. 
John's in honor of the day. 

The legal effect of this transaction has been adju- 
dicated by the Supreme Court of the United States, 
in the opinion of Marshall, in the case against the 
State of Georgia before cited. 

"This principle, suggested by the actual state of 
things, was that discovery gave title to tlie govern- 
ment by whose subjects or by whose authority it 
was made against all other European governments, 
which title might be consummated by possession. 
This principle, acknowledged by all P.uropeans, 
because it was the interest of all to acknowledge it, 
gave to the nation making the discovery, as its 
inevital)le consequence, the sole right of acquiring 
the soil, and of making settlements on it. It was 



11 



an exclusive principle, which shut out the right of 
competition among those who had agreed to it. * * 
It regulates the right given by discovery among the 
European discoverers.*^ 

In the Mcintosh case, he also treats the same sub- 
ject : " It is supposed to be a principle of universal 
law that if an uninhabited country be discovered by 
a number of individuals who acknowledge no con- 
nection with and owe no allegiance to any govern- 
ment whatever, the country becomes the property of 
the discoverer, so far at least as they can use it. 
They acquire a title in common. The title of th^ 
whole land is the whole society. It is to be divided 
and parcelled out according to the will of the 
society, expressed by the whole body, or by that 
organ which is authorized by the whole to express 
it. If the discovery be made, and possession of the 
country be taken, under the authority of existing 
government which is acknowledged by the immi- 
grants, it is supposed to be equally well settled that 
the discovery is made for the whole nation, that the 
countiy becomes a part of the nation, and that the 
vacant soil is to be disposed of by that organ of the 
government which has the constitutional power to 
dispose of the national domains, by that organ in 
which all vacant territory is vested by law. 

" According to the theory of the British Consti- 
tution, all vacant lands are vested in the crown, as 
representing the nation, and the exclusive power to 
grant them is admitted to reside in the crown, as a 
branch of the royal prerogative." 

Under this determination of the law the act of 
Cabot in taking possession of the continent where 
he landed vested its title in the British crown. 

After performing this momentous deed, by which 
England became the owner of a territory of almost 
illimitable extent, Cabot sailed along the coast 
southward, as far as the 38° north latitude, that is, to 
the Capes of the Delaware; then returned to Eng- 
land and reported his success. * 



12 



The following year, 1498, Cabot presented a second 
petition to the King and obtained a renewal of his 
concessions, upon which he, with his son Sebastian, 
crossed the Atlantic and skirted the shore of America 
from Labrador to the Gulf of Mexico. The 
father died before his return, leaving the exi)edition 
to the care of Sebastian. "Did these adventurei"s, 
by sailing along the coast, and occasionally landing 
on it, acquire for the several governments to which 
they belonged, or by whom they were commissioned, 
a rightful property to the soil from the Atlantic to 
the Pacific, or rightful dominion over the nu- 
merous people who occupied it ?" It seems absurd 
to claim that such voyages could give England 
ownership to the land upon which the mariners 
had scarcely gazed. This question, propounded 
by Marshall, he indirectly, but conclusively, 
answered thus: "But power, war, conquest, give 
rights which, after possession, are conceded by the 
world and which can never be controverted by those 
on whom they descend." 

Under tlie law of nations these two voyages of the 
Cabots gave to England the exclusive title to three 
thousand miles in latitude of the American con- 
tinent, as the original discoverer, besides the untold 
riches of the deep in the food fisheries of Newfound- 
land and the whale fisheries of the Arctic sea, in 
which she shared with other nations. 

Sebastian Cabot, whose name has eclipsed his 
father's, inherited the patent given to his father, 
which entitled him to the exclusive possession and 
occupation of all the lands which he had thus dis- 
covered. To us the stupendous folly of that age is 
utterly incomprehensible. This vast continent, 
with a wealth not yet developed, but exceeding the 
most daring flight of the miser's avarice, invited 
England to take possession, and the invitation was 
rejected for nearly a century. Cabot endeavored 
fruitlessly for years to enlist the capital of English- 
men to prosecute his discoveries, and in 1512 left 



13 



England disheartened at his disappointment, and 
engaged in the service of the King of Spain. Sub- 
sequently, in 1548, he returned to England. In 
March, 1551, he was granted a pension by the King, 
which was i-enewed by Queen Anne in November, 
1555. On the 27th day of May, 1557, he resigned 
this pension, and in or about 1559 he died unhonored 
and unknown. The date of his death, the place of 
his burial, are forgotten. No stone marks his last 
resting place. No monument in England, which he 
so greatly enriched, or in America, which owes him 
such a debt of gratitude, commemorates the fame of 
the original discoverer of America. The irony of 
fate has ordained that the name of Columbus should 
shed lustre upon the reign of Ferdinand and Isa- 
bella, although lie brought to the Spanish crown a 
gift that proved its destruction, while Cabot, who 
by this discovery laid the foundation of England's 
greatness, wealth and power, is forgotten. 

The grant to Cabot expired with his death, and 
for nearly twenty years thereafter not a man in 
England thought it worth his while to even ask for 
a similar privilege. There was, however, one in- 
dividual, Sir Humphrey Gilbert, who had a scien- 
titic interest in exploring, who conceived an idea, 
such as now exists, in the endeavor to reach the 
North pole. He iirmly believed that there existed 
a northern passage to Asia, and that, if stations 
were founded from which explorations could be 
conducted, that passage would be discovered. On 
the 11th day of June, 1578, Elizabeth, then Queen of 
England, granted to Sir Humphrey a patent of all 
lands in America two hundred leagues in either 
direction north and south from the place of his land- 
ing, and from ocean to ocean. So worthless was 
this Continent ! Sir Humphrey had a half brother, 
twenty-six years of age, named Walter Ralegh, 
who already had achieved a heroic career, tirst 
lighting as a volunteer in aid of the Huguenots 
in France, and afterwards assisting the Dutch 



14 



in their patriotic struggle against Spain, and 
to whom he intrusted the command of one 
of the fleet of seven vessels with which 
he sailed from England in November, 1578, with 
three hundred and fifty men. Unfortunately the 
season was unpropitious, and the voyagers were 
compelled to return without having accomplished 
anything. Nothing daunted, the noble knight in 
June, 1583, again sailed for America with a fleet of 
four vessels and the good wishes of Elizabeth, but 
without his lialf brother, who had become one of the 
Queen's favorites, and she forbade his thus risking 
his life. 

He arrived at St. John, on the shores of New- 
foundland, in August, and, as he writes, " On the 
fifth of August I entered here in the right of the 
Crown of England, and have engraved the arms of 
England, divers Spaniards, Portugaiese and other 
strangers witnessing the same." Then he sailed for 
Norumbega, and in latitude 40° lost his great ship, 
the "Admiral," with most of his supplies. This 
disaster compelled liim to set sail for England, and 
on the way thither his little craft foundered in mid- 
ocean, and he and all his crew perished. 

On the 20th day of March, 1584, Walter Ralegh 
obtained from Elizabeth a similar grant of all land 
extending two hundred leagues north and south of 
any point where he might locate a colony. His 
patent authorized Ralegh to detain and possess, as 
lawful prize, all citizens of England and all other 
persons in amity with us, their ships, goods and 
furniture, who should trade to the new found lands 
without Ralegh's consent. And that he might 
expel and resist any who should inhabit in the 
lands granted without his assent. Giving unto him 
full power and authority to take and surprise by 
all manner of means whatsoever all and every per- 
son, their ships, goods and furniture, which, with- 
out his license, shall be found tratficing in any 
harbors or creeks within said territory. 



15 



On the 4th day of July, 1584, the first English 
speaking colony landed in the territory of the 
United States. Thus the foundation of the nation, 
and the establishment of the nation's liberties, have 
the same anniversary. This landing was made at 
the haven of New Inlet, where they " took posses- 
sion in the name of the Queen's most excellent 
Majesty, as rightful Queen and Princess of the 
same." The settlement was subsequently made on 
Roanoke Island, but it was of short duration, for in 
June, 1586, the colonists returned to England. In 
1589 Ralegh granted a patent to "the Governor 
and assistants of the City of Raleigh in Virginia," 
as he had named the country in honor of the virgin 
queen, who had in turn conferred upon him the 
rank of Knight. Befoi'e the end of the century 
Ralegh had sent out eight colonies and had expend- 
ed £40,000, an immense sum in those days. He had 
an abiding faith in the future of America. " I shall 
live to see an empire on its shores," was his 
projihetic utterance, the fulfilment of which was 
prevented by his untimely death. 

In 1602, a Capt. Gosnold sailed from England 
with some colonists, whom he landed on the Island 
of Cuttyhunk, and returned with a cargo of sassa- 
fras and cedar wood. Upon his arrival in England, 
Sir Walter Raleigh had his cargo confiscated in the 
Court of Queen's Bench, under the clauses of his 
charter from Elizabeth above cited, because he tres 
passed upon his domain without license from him. 
Thus, so far as the English Courts could determine, 
Ralegh had a valid title to the territory from New 
Inlet to Massachusetts, and it follows that that title 
included the wiiole of New York at the seaboard. 

The following year England's greatest queen was 
succeeded by the sou of her hated rival, and 
Ralegh's fortunes suffered a great eclipse. In 
November, 1603, this unworthy monarch, James I., 
caused the arrest, attainder and conviction of Ralegh 
for treason. Under the law of England the execu- 



16 



tion of the sentences is not essential for the forfeit- 
ure or escheat of the convict's property. Peters- 
clorff, in his Abridgment, says, " By the verdict of 
guilty, goods and chattels are forfeited to the 
Crown ; upon judgment in attainder the laws are 
divested." Blackstone states the law thus, "By 
attainder in high treason a man forfeited to the 
Crown all his lands and tenements of inheritance." 
Consequently, under the forms of law, this immense 
territory, which Elizabeth had granted to Ralegh, 
reverted to the Crown in 1603. 

On the 16th day of April, 1606, King James made 
the famous charter to the Virginia colony. By it 
the patentees are divided into two classes, which 
are severally designated as the First Colony of Vir- 
ginia and the Second Colony of Virginia. The terri- 
tory assigned to the first colony extended from 34° 
to 41°; to the second colony from 39° to 45°. It will be 
observed that the land from 34° to 39° and from 41° 
to 45° was to be enjoyed severally by the I'espective 
colonies, and that from 39° to 41°, which embraces 
New York and the adjacent territory, was patented 
to both as tenants in common. It was intended as 
a neutral zone, over which both might enjoy a com- 
mon jurisdiction. 

This charter, which is too long to be reproduced 
here, contains, among other provisions, one by 
which the patentees were empowered "for their 
several defenses, to encounter, expulse, repel and 
resist all persons who shall, without license," at- 
tempt to inhabit "within the said precincts and limits 
of the said several colonies, or that shall interfere 
or attempt, at any time hereafter, the least detri 
ment or annoyance of the said several colonies or 
plantations." 

The nature of grants of this character has been ex- 
amined and determined by the Supreme Court of the 
United States. It was a royal grant, revocable by the 
sovereign, so far as the lands remained in possession 
of the original patentees. As there is no waste or 



17 



unoccupied land of the Crown, so there is no waste 
or unoccupied land of the viceroy. All made the 
same claim. " France claimed all Canada and Acadia 
at a time when the French population was very in- 
considerable, and the Indians occupied almost the 
whole country. No one of the powers of Europe 
gave its assent to this principle more unequivocally 
than England." 

The right of England to this territory, stretching 
from the boundary of North Carolina to the north- 
ern part of Maine, under the name of Virginia, was 
officially recognized by the Diitch Government. On 
the 24th day of April, 1608, the year before Hudson 
sailed on the voyage to New York, on a petition pre- 
sented to the States-General of Holland, requesting 
it, leave of absence to Sir Thomas Gates, a Captain 
of English soldiers in their employ, was granted for 
one year, " to command in the country of Virginia 
in colonizing the said countries." 

Thus England discovered, named, patented and 
colonized the territory in question before a single 
Dutchman had ever visited the coast of America. 

No one can read the records, which have thus 
been briefly mentioned, without being convinced 
that the Dutch had no claim of title to New York 
by discovery under the voyage of Hudson. 

It will, however, be wise to recur to the explora- 
tions of other nations, which will establish, not only 
that the Dutch never had any claim to the discovery 
of America, but in fact, they were the very last to 
explore these shores. 

The Portuguese, who had been the first maritime 
nation of Europe, and who had discovered .the way 
to the Indies by doubling the Cape of Good Hope, 
sought to find a more direct course to the Orient. 
In the Summer of 1.500 Gasper Cortereal, having 
obtained from Emanuel, then King of Portugal, a 
license to discover new islands, sailed from Lisbon 
to the northward, and returned with a report that 
he had landed in a beautiful country which he named 



18 



Terre Verde. The next year he renewed his search, 
and sailed along the coast of North America for six 
hundred leagues, without finding any end to tlie 
land, and therefore concluded that there was no 
passage to the Indies to be found there. In 1502 
his brother Mignel sailed to North America, and 
made a closer exploration, in which he found many 
estuaries, large rivers and safe havens. 

In 1524 Giovanni de Verrazano, a Florentine, 
under the authority of Francis I., King of France, 
sailed to North America with the intention of reach- 
ing Cathay, on the extreme coast of Asia. He ex- 
plored from the Tropic of Capricorn to the 50° north 
latitude. On the way he visited a bay with a 
"grandissima riviere," and from thence sailed one 
hundred and fifty miles eastward to a bay with 
several islands, in the latitude of Rome, which has 
been identified with Newport. Consequently, the 
bay and river he had previously seen could have 
been only the bay of New York and the Hudson 
River. Doubts have been expressed regarding the 
veracity of this discovery, which have been argued 
with such force that Mr. Bancroft, in tiie later edi- 
tion of his History of the United States, has omitted 
all reference to Verrazano wliich the previous edi- 
tion contained. No serious question has been made 
that the author of the description had visited New 
York and Newport. It was contended that it was a 
forgery in attributing it to Verrazano. No com- 
mission to him can be found in the French archives, 
and the letter purporting to have been written by 
Vei-razano to the King was of later origin. Recent 
discoveries have established, beyond all reasonable 
doubt, the authenticity of this letter, and the prior- 
ity of Verrazano' s discovery of the Hudson River. 

In February, 1525, Esteban Gomez, a Portuguese, 
who had been the chief pilot of Magellan, under a 
concession from the King of Spain for an expedition 
to the northwest, to find a passage to Asia, sailed 
from Corunna, a port in the north of Spain, and 



19 



was absent for ten months. He coasted from Florida 
to 41° north latitude, and on the 13th of June he 
likewise discovered a large river in latitude 40° to 
41°, which he named Rio de Antonio, in honor of St. 
Anthony, whose day it was. Not content with visit- 
ing the harbor, he sailed up the river, and in honor 
of his discovery the Spanish seamen who followed 
in his track, and were familiar with the river, called 
it Rio de Gamas. 

These adventurers returned with infonnation of 
the teeming food fishes which have always abounded 
on the coast otf the Banks. And all the seamen of 
Western Europe, particularly the hardy fishermen 
of Gascony, Spain and Portugal, frequented these 
waters for cargoes of fish. For nearly a century the 
customary route to America was to sail to the Azores, 
then to the West Indies, and thence along the coast 
of America to the fishing grounds, and to return by 
retracing their course. It was in the presence of 
these fishermen Sir Humphrey Gilbert took pos- 
session of the main land, and it was in following 
their route, near the Azores, that his "little frigate" 
foundered. 

In coasting along the shoi'e these fishermen had 
several ports of refuge from storms, which they 
called stages, one of which was this Rio de Gamas, 
now known as the Hudson. In a map presented by 
certain Dutch captains to the States General in IGll, 
which has been preserved to this day, and which 
represents the Hudson and the adjacent countiy as 
far north as Albany, there are names of undoubted 
Spanish origin. And "the Pompey stone," pre- 
served in the State collection at Albany, the genu- 
ineness of which is undoubted, and which is now 
supposed to record the death of a Spanish captive 
in or near the town of Pompey, also proves that the 
Spaniards had made their way to the headwaters 
of the river before the advent of the Dutch. 

In 1534 Jacques Cartier, under a commission from 
the King of France, founded a settlement in Canada; 



20 



and in 1564 Ribaiilt and Landonniere, under a com- 
mission from (Charles IX., colonized the Carolinas, 
and the French claimed all the intermediate terri- 
tory. The name Norumbega, which rhey gave 
the country, has been derived from the corruption 
of the original name they gave to the Palisades, 
that high basaltic formation on the western bank of 
the river, V enorme berge (the enormous cliffs). The 
English always conceded that the French had terri- 
torial rights. They only disputed their extent. 

English,- French, Portuguese and Spanish had 
visited the region. The French had originally dis- 
covered the harbor and river, the Spanish had ex- 
plored it. The fisliermen of all had made it a place 
of refuge. Then came the Dutch. In 1596 ceitain 
Dutch merchants obtained from the States-lreneral 
of Holland the incorporation of a company known 
as ' ' The Greenland Compan j' ' ' which proposed by 
that northerly route to find a way to the Indies. 
In 1598 some of their ships, avoiding the rigor of the 
Arctic Winter, entered the port of New York — per- 
haps having knowledge of it as one of the stages of 
the fishermen — and their crews built some temporary 
huts on Manhattan Island, where they wintered. 
In the Spring they departed, and no native of Hol- 
land ever returned until the famous voyage of Henry 
Hudson, eleven years afterwards. 

The claim of the Dutch to title by discovery, 
under the voyage of Hudson, must, under the fore- 
going facts, be considered exploded. When in 
1654 the States-General directed the West India 
Company to present their pretensions to the British 
Government, they were limited to reckoning from 
the beginning of 1611 and to conclude with 1650. 
When they proceeded to do this, and sent a dele- 
gation with it to England, they wrote back to 
Holland that they themselves did not consider the 
claim of the Company substantiated by the evidence 
adduced, and unless better evidence was brought 
forward they could not possibly press the claim 



21 



upon the English Government (3 Asher, 35). Equally 
indefensible must the claim as discoverers be con- 
sidered. 



3. Title under the Borgian grant. 

This claim seems to have been a dernier resort, 
and not to have been very seriously pressed. Its 
examination carries us back to a period anterior to 
the discovery of America. 

When commerce was piracy, and might was right, 
the Church was the acknowledged superior and 
ultimate arbiter of the civilized world. Under the 
promise in the Messianic psalm, 

" Ask of me 

And I will give thee the heathen for thine inheritance 

And the uttermost parts of the earth for thy possession," 

the Pope was conceded to have the right to dispose 
of all the territory inhabited by savages. 

When the Turks captured Constantinople, and 
Venice entered into a treaty with the Sultan of 
Egypt, which gave it a monopoly of the commerce 
to the East, the wealth of which Europe had lately 
learned, through the travels of Marco Paulo and 
other adventurers into Asia, the endeavor of Europe 
was to find a new way to the Indies. Arabian 
knowledge, especially in navigation and astronomy, 
was slowly diffused througli the Mediterranean, 
until the belief became general that the earth was 
not the fiat plane patristic geography had taught 
but a globe, and that Africa was a mighty pen- 
insula. 

These ideas, developed by the Portuguese, who 
were aided by the newly discovered mariner's com- 
pass by which they could venture boldly on the 
shoi'eless main, led to the discovery of the coast of 
Guinea, the Cape of Good Hope, and, finally, to the 
coveted goal of the Indies. 

Dutiful sons of the Church as they were, they did 
not claim to own this territory by right of dis- 



22 



covery, but they applied to the Pope for a grant of 
the whole of the maritime East. This petition re- 
ceived a favorable answer, and they thereby ob- 
tained a monopoly of the whole of the East, from 
Cape Non to India. 

But Venice and Portugal were not destined to 
have this rich traffic wholly undisturbed. An en- 
thusiast and speculative dreamer of Genoa, named 
Columbus, went from Court to Court, endeavoring 
to obtain a fleet to sail westward to India, for he 
reasoned that, if the world were truly a sphere, the 
East could be found in the West, and he had ob- 
served, in his voyages among the islands in the 
Atlantic near Europe, that the westerly gales had 
wafted to their shores unknown vegetation, which 
must have come from land to the westward. For 
many long and weary years the Bible and common 
sense defeated his project. The theologians said, 
how could it be said that every eye should behold 
the Lord at His second coming, if there were people 
on the other side of the globe, and the wise, practi- 
cal men wanted to know how the ships could sail 
up hill back again. At last Spanish cupidity over- 
came such unanswerable logic, and Columbus be- 
came immortal. 

In the Spring of 1493, after the return of the dis- 
coverer of the New World, Ferdinand and Isabella, 
faithful to the traditions of the Church that the 
Pope, as Viceregent of God, had the absolute power 
of disposing of aU land occupied by the heathen, 
sent a deputation to Rome, to Pope Alexander VII., 
petitioning for a grant of the newly discovered 
lands. The Pope, mindful of the previous donation 
to Portugal, made a grant by which he gave to 
Spain all continents and islands, known and un- 
known, discovered and to be discovei-ed, lying west 
of a meridional line, to be drawn from pole to pole, 
one hundred miles west of the Azores, and confirmed 
to Portugal all to the eastward of such line. 

How did this grant affect Holland 'i 



23 

Mary, of Burgundy, brought to her husband, 
Maximilian, of Austria, as her dowry, the provinces 
of the Netherlands. Her son married Joanna, the 
daughter of Ferdinand and Isabella, the issue of 
which union was Charles V., Emperor of Austria, 
King of Spain, Duke of the Netherlands, and ruler 
over one-third of the habitable globe, the most pow- 
erful sovereign the world had seen since the de- 
struction of the Roman empire. 

That wonderful war between Holland and Spain, 
which lasted eighty years, and ended with Holland 
independent and prosperous, and with Spain crip- 
pled and impoverished, was primarily undertaken 
by Charles to enforce the obedience of his disloyal 
and rebellious subjects. The glowing pages of 
Motley worthily record the heroic struggle, in 
which, on the 26th day of July, 1581, the United 
Provinces, assembled at the Hague, solemnly de- 
clared their independence of the King of Spain and 
renounced their allegiance forever. 

The pretensions of the Dutch to an interest in this 
Borgian grant were simply absurd. It was made 
before they were part of the Spanish Empire, and 
asserted by them after they had achieved their 
independence. Besides, Spain herself never claimed 
that the Papal grant conferred upon her any title to 
any part of America, north of Florida. " Spain," 
says Marshall in Johnson vs. Mclntyre, "did not 
rest her title solely on the grant of the Pope. Her 
discussions respecting boundary with France, with 
Great Britain, and the United States all show that 
she placed it on the rights given by discovery." 
And the Dutch could obtain no larger right under 
this donation than the Spanish had for themselves. 
In addition to these considerations, tli» Protestant 
countries of Europe never recognized the validity 
of the Papal grant. When the Spanish Ambassa- 
dor complained to Elizabeth, in 1584, that Drake 
was infringing on Spanish rights under that grant, 
she refused to recognize the claim, haughtily answer- 



24 



ing, " that England knew nothing of a Pai)al gift, 
or any authority in the Pope to grant any land in 
world." 

That great writer on National Law, Grotiiis, him- 
self a Hollander, whose work, De Mare Juris, says 
Hal]am,oonstituted an epoch in the affairs of Europe, 
denied that the Pope had any authority to grant 
the ocean to any power, because, in the nature of 
things, it was free to all. The same reasoning 
would apply, with equal force, to the unoccupied 
lands, of the then undiscovered world. 

Spain, except in case of the Pacific Ocean, never 
made any such claim. Her position, in respect to 
the islands and continents of the new world, was 
like a mortgagee, who takes his mortgage to secure 
past and future advances. The Papal grant made 
it unnecessary for her to renew her application to 
the Pope on every fresh discovery. 

Hence, in no point of view can this claim of the 
Dutch be maintained. 

These are the grounds upon which, the Dutch 
claimed the right to the ownership of any part of 
North America, and they are as untenable as 
" The baseless fabric of a dream." 

4. Title by tJie de facto exercise of Dutch sover- 
eignty over the Colony of New Netherland. 

To state the facts on this subject it will be neces- 
sary to commingle the acts of the Dutch and Eng- 
lish as they concurrently transpii'ed during the 
period in question. 

In 1610 some Hollanders, still affected by the 
craze for a short route to China, fitted out some 
ships for a i^orth passage thither, and on the 1st of 
February, 1611, the States-General perpetrated the 
most stupendous joke on record ; they resolved to 
provide the adventurers with letters to the princes 
of the countries at which they might ai'rive, written 
in such language and characters as might be most 



25 

useful ! These vessels, in the course of their explor- 
ations, landed at New York, and a commercial value 
in the furs obtained here led for the first time 
to a renewed voyage. In 1614 the owners of these 
ships, claiming and believing that they had discov- 
ered the harbor and bay of New York, petitioned 
the States-General for an exclusive grant of trading 
to this territory, which was granted only to the ex- 
tent of conferring upon them a monopoly among 
their own subjects. It was limited upon its face to 
this and was merely granted for the purpose of 
trade ; no territorial rights whatever, either by word 
or implication, were conferred. This monopoly was 
limited for three years, and subsequently renewed 
and extended to 1621. 

The trade in furs proving profitable, they built 
three or four houses for the residence of those who 
remained, and a warehouse for the storage of their 
furs. One of their number was designated Governor 
of the colony, which had been continued from 1611. 
While the Dutch were planting a fur trading 
colony on Manhattan Island, the French emigres 
were extending their colonies from Canada to Port 
Royal and Mount Desert for the pious purpose of 
converting the Indians. 

When Sir Thomas Gates came to America in 1609, 
he brought with him to Jamestown, Virginia, or 
was foUowed by Capt. Thomas Argall, a regular old 
pirate, ready to pillage and destroy, to whom the 
Governor gave command. By virtue of his author- 
ity, and to supply the needs of the colony, in 1610, 
he visited the Penobscot region for cod and salmon. 
On his return he informed the Governor of the 
French settlements within the boundary of the Vir- 
ginia grant, of which he had thus learned, and forth- 
with he equipped a fleet, and sailing to Maine drove 
the French from Port Royal and Mount Desert. 
Part of them he took prisoners and carried to Vir- 
ginia, and the rest he inhumanly sent in an open 
boat to sea. Thus the Virginia colony asserted its 



26 



authority over the territory included in their grant. 
and enforced the rights conferred upon them to 
eject all trespassers. On his way back he stopped 
in the port of New York and threatened the Dutch- 
men there with extermination, such as he had 
visited upon the French, if they did not recognize 
the authority of Virginia. The defenseless Dutch- 
men thereupon paid him tlie tribute which he had 
demanded. 

This statement has also been denied, but this de- 
struction of the French settlements has been deter- 
mined by the best possible authority, the report of 
the Jesuits to Rome, and that being true, there is 
inherent probability in the story of his treatment of 
the Holland traders. Without citing the authorities, 
it is sufficient to say that the Rev. Dr. De Dosta, a 
thoroughly informed scholar on American history, 
has established that the early Dutch settlers on 
Manhattan island did, in 1613, acknowledge the 
English sovereignty over the territory. 

Again in 1619 or 1620, Captain Thomas Dormer, 
an Englishman in the service of Sir Ferdinando 
Gorges, touched at Manhattan on his way to New 
England, and molested these Dutch settlers and 
threatened to confiscate their property, whereupon 
the Dutch promised "to come thether no moe." 

The story of the exodns from England to Holland 
and from Holland to America of those Godly men, 
who are fondly remembered as the Pilgrim Fathers, 
has been too often told to be repeated here. They 
however bear a part in the legal history of New 
York that must be mentioned. In 1617 they con- 
cluded to leave Holland, and they then determined 
to settle in New York. Thereupon they sent a del- 
egation to England to obtain a charter. Two years 
elapsed before they were able to obtain a favorable 
answer. Finally, in February, 1620, the first colony 
of Virginia granted a patent to John Pierce and his 
associates which entitled them to locate here, under 
which they sailed in the Mayflower. Contrary to 



27 



their original intention, they landed on Plymouth 
Rock. Before debarking on the 11th day of Nov- 
ember, 1620, in the cabin of the Mayflower, they 
designated themselves the loyal subjects of King 
James, who were undertaking to plant the hist 
colony in the northern part of Virginia. In the 
meantime, the King had granted a separate charter 
to the second colony of Virginia, under the desig- 
nation of the New England Colony, and on the first 
day of June, 1621, the President and Council of New 
England continued to the Pilgrims the Virginia 
charter by a patent which embraced New York. 

On the 15th day of December, 1621, the English 
Privy Council addressed a letter to the British Min- 
ister at the Hague, demanding the removal of cer- 
tain Hollanders who had, during the past year, 
intruded upon lands in that part of the north of 
Virginia called New England. Writing to the 
Lords of Council in February, 1621, the Ambassador 
says that he had made inquiry of merchants, the 
Prince of Orange and some of the States and learned 
that about four or five years since two particular 
companies of Amsterdam merchants began a trade 
in those parts betwixt 40 and 45", whither they had 
ever continued to send ships to fetch furs which 
was all their trade, for the providing of which they 
had certain factors resident there trading with the 
savages; but he could not learn of any colony either 
already planted there by these people or so much as 
intended. He would therefore demand of the As- 
sembly to take information of the business of which 
they professed ignorance. Thereupon the British 
Ambassador presented a memorial and asserted in a 
letter accompanying it the incontestable right of 
the King of England to said country, both by orig- 
inal discovery and jure 'primes occupationis, and 
that it was notorious to every one that he had by 
his letters patent granted quiet and full possession 
of the whole of said country to several private indi- 
viduals. 



28 



It was this protest that secured the incorporation 
of the West India Company. For many years the 
patriot William Usselinx and his compatriots had 
besought the States-General to incorporate said 
company for the principal purpose of attacking the 
commerce of Spain. Into this company was merged 
the association of traders who had previously 
secured the Dutch monopoly of trading in the New 
Netherlands. The West India Company originally 
had no intention of colonizing in North America. 
It made New York a naval station, from whence its 
ships could intercept the golden argosies of Spain, in 
which it was so successful that within a few years it 
boasted that "it had exhausted the treasury of the 
King of Spain, by depriving him of so much silver 
which was as blood from one of the arteries of his 
heart." In return j!or this anticijiated aid, the 
States-General incorporated a provision in the char- 
ter by which they obligated themselves to protect 
the Dutch territory in America. 

"Hitherto," says Mrs. Booth, "the Dutch had 
looked on Manhattan only as a trading ])ost. They 
did not think of making themselves homes in this 
new wild country, but dwelt in temporary huts, of 
the rudest construction, which scarcely protected 
them from the cold. But the English were exploring 
the coast and laying claim to all the country between 
Canada and Virginia, and the Dutch began to ideal- 
ize the importance of planting colonies in the new 
province, and thus securing their American posses- 
sions." 

This charter was dated on the 3d of June, 1621, 
but the establishment of the company, although 
chartered, was postponed. The charter conferred 
upon the corporatoi-s, for a pei'iod of twenty-one 
years, the exclusive right of trade in the Atlantic, 
from the tropic of Cancer to the Cape of Good Hope 
on the eastern, and from Newfoundland to the 
Straits of Magellan on the western shore. This was 
the extent of the West Indies. "Nothing could be 



29 



more magnificent, nor more vague." The company 
was authorized to maintain fleets and armies, build 
forts and cities, carry on war, make contracts with 
the native princes, administer justice, appoint gov- 
ernors subject to the approval of the States-Gen- 
eral to whom they were required to tal\^e oaths of 
allegiance. In return the company pledged itself to 
colonize the new territories (not any portion in i:)ar- 
ticular), and to report its proceedings to the States- 
General. The government was vested in nineteen 
members, one appointed by the State, the others by 
five chambers of managers, established in the prin- 
cipal cities of Holland. Under this charter the 
Dutch had the same right to occupy Canada, Massa- 
chusetts, Florida and Brazil that they had to occupy 
New York. 

About 1622 (most probably in 1620), although the 
only date given is 1622, certain Walloons and 
French who were desirous to go into Virginia, wlio 
were then residing in Holland, addressed the Eng- 
lish Ambassador at the Hague, petitioning that his 
Majesty wouhl permit fifty or sixty families as well 
Walloons as French, all of the reformed religion, to 
settle in Virginia a county under liis obedience, that 
they might erect a town for their security, that they 
might have a grant of territory which they should 
hold from his majesty in such fealty as he might 
deem reasonable, under which conditions and 
privileges they would prortiise fealty and obedience 
such as faithful and obedient subjects owe their 
King and Sovereign Lord. 

This petition was transmitted to Secretary Calvert, 
who acquainted his Majesty with it, by whom it 
was referred to the Virginia Company, to whom he 
had given all power by his letters patent to admit or 
exclude whom they pleased in that plantation, and 
thereupon the company were content to receive 
them upon certain conditions which were sent to the 
Hague to impart to the petitioners. 

No further mention is made of this matter in the 



30 



State papers nor are the names of the petitioners 
mentioned. It adds to the weight of the argument 
that the Dutch people were fully advised of the 
English claim to the territory embraced in New 
York and that they asserted no right thereto. It 
affoi'ds color for an assertioji that these were the 
identical people who actually founded the colony, 
for in 1623 the Amsterdam Chamber, to whose 
special care the province of New Netherland was 
consigned, despatched a vessel of large size with 
thirty families, mostly Walloons and French pro- 
testants,to found the colony. " These were, properly 
speaking, the earliest colonists of the province, the 
Dutch, who had previously emigrated thither, hav- 
ing been mere traders and temporary sojourners." 
In the same year the English prepared by force to 
attack the Hollanders in America, to give them 
fight and spoil and sink them down in the sea as 
they had previously served the French. But the 
Dutch entered into negotiation with England for a 
new treaty and the expedition never was despatched. 

The English again asserted their riglits here in 
January, 1624. On receiving information that there 
was a Dutch ship riding in the haven of Plymouth 
bound to a place in America which was compre- 
hended in a grant made by his Majesty, an order 
was issued to the Vice-Admiral of Devon and the 
Mayor of Plymouth to make stay of the ship until 
otherwise ordered. It does not appear that it was 
ever permitted to prosecute the proposed voyage. 

A treaty offensive and defensive against the 
unjust usurpations of Spain was solemnly made and 
concluded between the Lords States-General of the 
United Netherlands and his Majesty of England at 
Southampton, on the 7th day of Sept., 162.'). This 
treaty gave to the respective parties the right of free 
ingress, egress and regress into all ports, havens, 
roads and creeks of the other with their men of war, 
merchant ships and prizes, and freedom of trade 



31 



and commerce. In it there was nothing that conld 
be tortured into any territorial concession. 

In 1625 the jurisdiction of the first colony of Vir- 
ginia over this territory was terminated by writ of 
quo warranto^ which annulled' the original Virginia 
charter. 

In May, 1626, Peter Minuit ariived at Manhattan 
as its Governor. His first act was the purchase of 
the Indian title. " Having thus become the lawful 
owners of the property," says Mrs. Booth, with more 
pai'tiality for the Dutch than knowledge of the law, 
" the first care of the colonists was to provide for 
their personal safety. The English were constantly 
prowling about their coasts and threatening their 
destruction," to circumvent which Minuit, on the 
9th of March, 1627, caused an amicable letter to be 
addressed Governor Bradford at Plymouth suggest- 
ing that they should maintain friendly relations. 
Of course it was intended to entraj) the Governor 
into some admission of right, but Bradford was not 
so easily beguiled. He answered courteously, but 
suggested that the Dutch were trespassing on Eng- 
lish territory. Alarmed by this answer Minuit 
replied a few weeks after vindicating the right of the 
States-General to the territory of New Netherland. 
Not content with this he communicated the matter 
to the Amsterdam Chamber, whereupon the West 
India Company petitioned the English government 
to accord to them the benefits of theti-eaty of South- 
ampton. On the 5th day of September, 1627, this 
petition was granted by decree of the Privy Council, 
with this significant recital: "Whereas the com- 
panie of the West Indies in the united Provinces 
hath made humble suite unto his Ma""^ that their 
shipps employed thither either in trade or merchan- 
dize or on warfare for the weakening of the common 
enemy; might quietly pass on their intended voy- 
ages, both outward and homeward bound, without 
any molestation, stay or hindrance by his Ma"^^ own 



32 



shipps or those of his subjects employed witli l"""* of 
marque to the southwards or elsewhere." 

No clearer admission of English right could have 
been made than this petition. By the acceptance of 
the decree the Dutch were forever estopped from 
denying the right of England. It was the unquali- 
fied recognition of English sovereignty over that 
territory. Up to this time the Dutdi had never 
asserted any title to New Netherlands. It was sim- 
ply a trading company tliat had a monopoly as 
against other Hollanders of the iurs and peltries of 
the province, and that had had there a local habita- 
tion and a name. 

The benefits of the treaty of Southampton did 
not give the Dutch any title to the land, nor did the 
English so intend it. The original grant to the Vir- 
ginia Company, the royal grants to the patentees of 
Connecticut, to Lord Sterling of Long Island and 
the lands adjacent thereto, and from the New Eng- 
land Company to the Plymouth Colony, all included 
New York. And every New England charter 
granted by Charles recited the original grant to the 
Second Colony of Virginia as embracing territory 
which included New York. Last of all the Gov- 
ernor- Geneial of Ireland in 1632 granted to Sir John 
Plowden a patent to New York. On the principle 
that the last should be first, Plowden was the first to 
attemi)t to take possession of his property, he ap- 
peared and demanded of the Dutch tluit they 
should recognize his authority, which they refused 
to do upon the ground that his patent was invalid 
because the seal was broken, and as he had not a 
suflicient force at his command to compel submission 
to his claim, he found it expedient to retreat. But 
the English continuing thus to patent the land, con- 
tinually asserted their right and title to the same. 

Besides these royal grants the colonial Governors 
exercised jurisdiction over this territory. In 1628 
the Governor of Virginia gave to Wm. Clayborne 
full power and authority to "saile into any the 



33 

ryvers creekes portes and havens" within the 
degrees of 34 and 41 " and there to trade and truck 
with the Indians for furs skins corne or any other 
comodities of what nature or quality soever they 
bee." 
The King of England also made similar grants. 
In 1632 more vigorous measures were adopted to 
assert English sovereignty over New York. Captain 
Mason, interested in the New England patents, de- 
nounced the Dutch as interlopers "betwixt Cape 
Codd and Bay de la Warre in 40 degrees northerly 
latitude, being a part of that country which was 
granted to Sir Walter Rawleigh by Queene Eliza 
beth in Anno 1684 and afterwards to divers of her 
subjects under ye title of Virginia," and complained 
to the Government of their great trade. On the 
19th of March, 1632, the Dutch vessel the EencTracM 
sailed from Manhattan Island for Holland loaded 
with furs and having as a passenger Governor 
Minuit, who had been recalled. By stress of 
weather it was forced into the port of Plymouth in 
England, and the vessel and cargo wei-e seized by 
the British authorities upon the ground that the 
Dutch had invaded British rights in trading on 
English territory without a license. A diplomatic 
correspondence ensued, in which the English, as they 
invariably had done, claimed the territory by right 
of discovery and prior occupation. The Dutch 
West India Company laid claim to it because the 
New England and Virginia Colonies were chartered 
"upon the express condition that the respective in- 
corporated parties should remain one hundred miles 
apart from each other, and have so much between 
them both." This statement, as the original charter 
shows, was incorrect, and if it were true would not 
countenance the Dutch claim. But it proves they 
knew the terms of the Virginia charter, and conse- 
quently they neither deceived others nor themselves 
by perverting its meaning. To this reas(jn the Dutch 
ambassador added the further consideration that 



34 



they had acquired the title of tlie Indians. After 
several months of negotiation the King of England 
directed the release of the vessel with the express 
reservation of his rights in the premises. The Com- 
pany received the vessel without making any claim 
for damages for its detention. 

Tlie next year there was the converse of this situ- 
ation. In April, 1633, the William, a British ves- 
sel, British manned, came to New York, and in 
spite of the Dutch protests ascended the Hudson to 
trade with the Indians. The Dutch assembled in 
force where the crew landed and drove them away. 
The British Ambassador at the Hague thereupon 
made a demand upon the Dutch West India Com- 
pany for the damages thus sustained. The Com- 
pany petitioned the States-Genei-al to interfere on 
its behalf. After long consideration, on the 16th 
day of October, 1634, the government declined to 
interfere, and advised the Company to confer in this 
matter with the English Ambassabor. Is this the 
attribute of a sovereign? The Dutch were no pol- 
troons. Invincible at sea, flushed with victory over 
Spain, fearless of England, would they have thus 
ignominiously refused to espouse the cause of their 
own citizens, whose patriotic efforts had largely con- 
duced to their success, if they were sovereign over 
New Netherlands ? 

On the 7th of June, 1635, the president and coun- 
cil of New England sui-rendered its great charter to 
the Crown for the purpose of having the land em- 
braced therein divided into twelve provinces, which 
the proprietors might enjoy in severalty. The 
ninth of these extended from the Connecticut to 
tiie Hudson, including Manhattan Island, and was 
allotted to the Duke of Lenox. 

In 1034 the Privy Council again ordered the de- 
tention of a ship of Holland lying at Covves bound 
for the Hudson River, and the prevention of any 
others that might come thither for like puqioses. 

During the next fllteen years the troubles in Eng- 



53 



land prevented much consideration of America. 
We can now with difficulty comprehend the situ- 
ation as it then was. The whole country was called 
"the Wilderness," the horrors of which induced a 
criminal, to whom the choice was given of execution 
or transportation, to prefer hanging in England to 
living in America. Consequently the Dutch re- 
mained unmolested for the time being. 

In 1643 William Kieft, who had become Governor 
of the little colony, planned and executed the most 
unjustifiable massacre of the Indians ever perpe- 
trated in America under the delusion that he would 
awe the remainder inio submission. In one week 
the country was desolated. On the fourth of March 
the panic-stricken Governor proclaimed a day of 
general fasting and prayer without atoning for his 
crime. The colony never recovered from the blow. 
The Indians destroyed the dwellings, the barns and 
the cattle of the settlers and prevented the cultiva- 
tion of the soil. The distress had so increased that 
in the Fall they petitioned the Government to sup- 
ply them with food to save them from starvation or 
with vessels to return them to Holland. The eight 
men, who were the chosen representatives of the 
colony, stated in one of the documents forwarded 
to the Government that the Indians had destroyed 
all the boweries or plantations upon the island 
beyond the fort, with the exception of only three, 
and that the inhabitants were in peril of their lives. 
The Government adopted a resolution that the popu- 
lation was neglected by the Company and in conse- 
quence decreasing. 

. In July, 1646, that doughty old Knickerbocker, 
Petrus Stuyvesant, was sent over to be the Governor 
of the province, and he found that while the Dutch 
had been sutfering from the just resentment of the 
Indians, the English colonies had been prospering 
and flourishing and were rapidly approaching New 
York both from the east and the south. He there- 
fore wrote to the States-General that unless the 



.30 



colony was taken under the wing of the State instead 
of being allowed to remain under a private corpora- 
tion, the English would soon displace them. 

In 1647 an agent of Lady Sterling, widow and 
devisee of Lord Sterling, who held the Long Island 
j>atent, demanded of Stuyvesant the surrender of 
the territory. 

In 1649 Stuyvesant negotiated with the Connecti- 
cut colony the settlement of the boundary line 
between that colony and New Netherlands, but the 
action of the colony was never ratified in England 
and never became effectual. This was the nearest 
approach ever made by the Dutch to any recognition 
by England. 

While the English colonies were rapidly increas- 
ing in numbers and wealth, and were extending in 
every direction, the affairs in New Netherland were 
going from bad to worse, and in 1650 certain dele- 
gates sent to Holland presented a petition to the 
States-General in which they set forth the calamities 
that had befallen them through the mismanagement 
and neglect of the Dutch West India Company, by 
whicli "their territory had become a desert and the 
people impoverished, harassed, afflicted and reduced 
to utter ruin, while New England was populous, 
rich, prospei'ous and driving an immense trade and 
commerce almost with the entire universe," and 
recommended "in order to block the further prog- 
ress of the English, that they should provision;dly 
set about hitching on to New Netherland the most 
distant lands lying between the Dutch nation and 
the English, which are yet vacant." 

To add to their afflictions the British Parliament 
in that year enacted that, after the 26th day of IMarch, 
1651, all vessels trading to Virginia and New Eng- 
land without English authority should be confiscated. 
That the Dutch came within the purview and penal- 
ties of this act was fully recognized by them in a 
petition which the Dutcli merchants addressed to 
the States-General for relief. In the meantime, in 



37 

January, 1651, before the foregoing act was to take 
effect, Eagland demanded that the Dutch should 
surrender some political refugees, which was refused. 
In the turmoil that ensued it was alleged that the 
English ambassador was insulted by the populace. 
Thereupon the Navigation Act was passed for the 
protection of English shipping against the Dutch, 
which resulted in war between the two countries. 

In consequence of that, for the first time the States- 
General directly interfered in the affairs of the col- 
ony, and that only to this extent : On the 2d day of 
July, 1652, they directed Stuyvesant to take good 
care and be of a watchful eye respecting the persons 
he employed during the rupture between that State 
and England. 

While this war was being waged, on the 2d day of 
February, 1653, on the anniversary of the feast of 
the Purification of the Virgin, commonly called 
Candlemas, the little colony on Manhattan Island 
became a city. 

The following December, Cromwell became Lord 
Protector of England, and he immediately opened 
negotiations for peace, which was concluded in Feb- 
mary, 1654. It was then that the States-General 
directed the Dutch West India Company to present 
to England their claim in the i)ossible hope that it 
would meet with a favorable consideration, which 
has been before mentioned. Lord Thurloe, Crom- 
vvell's Prime Minister, asserted the justice of Eng- 
land's claim, both historically and legally, with 
convincing clearness and vigor. 

In 1656 a census of the city was undertaken and 
its population was ascertained to be only one thou- 
sand, a large proportion of whom were negro slaves; 
so foreign to Dutch temperament and education was 
the effort at colonizing in America. 

The encroachments of the English on the south 
induced Stuyvesant in 1659 to send a delegation to 
remonstrate with the authorities of Maryland in 
relation thereto, to which remonstrance the English 



38 



returned the answer they had invariably made that 
they were the original owners and occupiers of all 
the land known as Virginia and that they claimed 
under the patent to Raleigh in 1584. Tlieu it was 
that the Dutch tirst claimed to derive their title 
from the King of Spain and the Pope's donation. 
They apparently abandoned the claim previously 
made of title by purchase from the Indians, or dis- 
covery by Hudson. 

The death of Cromwell, the downfall of his son 
Richard and the restoration of Charles II. succeeded 
one another with startling rapidity and changed 
the aspect of affairs between England and Holland. 
A revised and more obnoxious Navigation Act was 
passed. In July, 1660, Lord Baltimore demanded 
that the Dutch shoiild surrender the land they occu- 
pied on Delaware Bay. Stuyvesant sent word to 
Holland that the English were seeking to invade 
the shores of the North River and to dispossess the 
Dutch West India Company. All was gloom and 
distress for these settlers. 

In 1663 the English Royal Council for Foreign 
Affairs, alleging that the Dutch had, of late years, 
unjustly intruded upon and possessed themselves 
of. certain places on the main land of New England 
and some islands adjacent, as in particular Man- 
hatoes and Long Island, ordered a commission to 
draw up a brief narrative of the Dutch invasion and 
the means to make them acknowledge and submit 
to his Majesty's government, or by force to compel 
submission or expulsion. The direct result is un- 
known. Its purpose was apparent. The time had 
arrived when England found it expedient and profit- 
able to assert her claim. Lord Clarendon, Prime 
Minister of Charles and father-in-law of James, the 
Duke of York, was undoubtedly intriguing on be- 
half of his noble son-in-law to obtain this prize. In 
furtherance of the scheme Clarendon purchased the 
Sterling grant, and in the early i)art of 1664 Charles 
sent royal commissioners, of who^i Col. NichoUs was 



39 



one, ostensibly to visit the New England colonies 
with secret instructions hostile to the Dutch. On 
the 24th day of June, 1664, Charles granted to his 
brother James the famous royal charter to all lands 
from the Connecticut River to the Delaware Bay. 
James empowered Col. Nicholls to take possession. 

Stuyvesant obtained tidings of these proceedings 
which he sent to Holland, but they were treated as 
idle rumors unworthy of attention. An ancient 
friend and ally could not be guilty of such conduct. 
Meanwhile, a fleet was secretly sent to America, 
landing flrst at Boston and sailing thence to New 
York to enforce this claim. On the 2d day of Septem- 
ber, 1664, the Dutch, unable to cope with the armed 
force England had sent, surrendered the colony 
and gave to the representative of the Duke of York 
peaceable possession, reserving to the inhabitants, 
in articles of capitulation, security in their person, 
inheritance, customs, conscience and religion. 

This underhanded and cowardly act cost England 
dear. In consequence of it the Dutch declared war, 
and under Van Tromp, their great admiral, defeated 
the English, ascended the Thames and threatened 
to put London under contribution. The brave 
Dutch admiral had the audacity to fasten a new 
broom at his mast head to signify that he had made 
a clean sweep. 

We are concerned with the legal aspect of this 
affair. If the Dutch were, as the English repeatedly 
asserted, interlopers and squatters, the law is very 
plain. It is the same with nations as matter of right 
as it is with individuals. If A occupies the land of 
B without right or title, and B ejects him by force 
or by fraud even, the manner and the time of the 
ejectment does not give A any redress as relates 
to ownership. 

In 1665, the English having sued for peace, the 
treaty of Breda was made between England and 
Holland by New York, the cause of the war was 
conceded to England, and Surinam was surrendered 



40 



to Holland to the great dissatisfaction of the Eng- 
lish people, who valued the rich provinces of the 
East more highly than obscure and insignificant ter- 
ritory in the American wilderness. 

England remained in quiet possession of New 
York until 1673, when the English and French de- 
clared war against Holland. In this emergency 
William of Orange was appointed Stadtholder, and 
he despatched the West India squadron, composed 
of twenty-seven vessels and sixteen hundred men, to 
attack the English. It destroyed the tobacco fleet 
of Virginia, and on the 28th day of July, 1673, 
sailed into the port of New York and demanded its 
surrender. The English, unable to resist with this 
formidable array, yielded on the following day. On 
the 8th of August the admirals of the fleet placed 
Sir Anthony Colve in command of the Province, and 
the Dutch became, by conquest, the lawful sover- 
eigns of New York. The conquest, however, 
availed the Dutch very little. The Prince of Orange, 
with true statesmanship, determined to concentrate 
aU his resources against the King of France, and 
therefore restored New Netherland to England. On 
the 8th of February, 1674, the treaty of West- 
minister transferred the title to the King of Great 
Britain. 

Upon this the question arose whether the patent 
to the Duke of York revived by virtue of the acqui- 
sition of the territory by the English. The crown 
lawyers, to whom it was submitted, unanimously 
held that it did not. The grant had been extin- 
guished by the Dutch conquest, and now belonged 
to the crown by the English conquest. 

Thereupon Charles, on the 29th day of June, 1674, 
executed to James a new patent in the identical 
words (except its date), but without any reference 
whatever to the first patent. Many well informed 
persons have fallen into the error of supposing that 
this was a confirmatory grant, but James had no 



41 



title whatever to confirm and the error has arisen 
from a failure to appreciate the exact situation. 

The effect of these grants has been adjudicated 
upon by the Supreme Court of the United States in 
Martin vs. Waddell, 16 Peters, 369, which involved 
the title to lands in New Jersey embraced therein. 
It was held that the right of the King to make these 
grants was unquestionable; that they were made to 
enable the Duke of York to establish a colony to be 
governed according to the laws and usages of 
England; that they created a viceroyalty; and the 
people were subjects of Great Britain. It has also 
been held by the same tribunal that the making of 
the grants heretofore mentioned from the days of 
Henry VII. to James was the continual declaration of 
the Crown of its sovereignty over the lands so pat- 
ented. James's repi-esentative granted to the City 
of New York all the waste and unpatented lands. 
And in the changes from the Dutch to the English 
and from the English to the Dutch the only reserva- 
tion made was that which accorded with international 
law, that the rights of private ownership and all 
succession under wills should be respected, and the 
Dutch claimants obtained from the English author- 
ities confirmations of their previous grants. Once 
more the political title, that is the title to all unpat- 
ented lands, reverted to the Crown when James on 
the death of Charles succeeded to the throne of 
England. 

In this brief summary of the events that trans- 
pired here it will be seen that under the law of 
nations as it has always been declared in both Europe 
and America the English were the lawful owners by 
right of discovery under governmental authority, 
perfected by taking possession long before the Dutch 
ever landed here, and continued by assertion of such 
ownership down to the time of the conquest. 

On the other hand the Dutch were interlopers, 
intruders, squatters. They had no title in fee to 



42 



tlip land before 1673. A squatter's title may become 
valid by lapse of time, but there is no statute of 
limitations against nations. When national or 
political usurpation ceases it is obliterated. This 
has been so decided in regard to the so-called Con- 
federate States government. When it ended it was 
as if it had never existed. Its ordinances and decrees 
afforded no justification and gave no color of right 
to any acts done thereunder. Prior to 1673 the law 
of England was the only law that can now be recog- 
nized as the law of the land. Whatever may be the 
efifect of the Dutch-Roman law upon roads and 
highways, respecting which there is a wide differ- 
ence of opinion, in places where Holland has had 
jurisdiction, it is immaterial in this case. That law 
never prevailed in this colony except for the few 
months that elapsed between the end of July, 1673, 
and the beginning of February, 1674. 

4. The objections made to this claim answered. 

One might be curious to know what answers have 
been made to these views, and therefore we state all 
that has heretofore been presented as the result of 
the laborious research of the counsel for the Elevated 
Railroad in New York who are interested in main- 
taining the proposition that certain roads in New 
York were of Dutch origin and governed by their 
law. This is what they say : 

"The de facto exercise of sovereignty over the 
colony of New Netherland by the States General of 
Holland is shown : (1.) By the recognition oOheir 
sovereignty in petitions and other papers emanating 
from the inhabitants of New Netherland. (2.) By 
acts and resolutions of the States-General pertain- 
ing to New Netherland. (3.) By expressions em- 
ployed by the magistrates of New Netherland in 
patents for land and other official papers. (4.) By 
the recognition of their sovereignty in diplomatic 
intercourse between the States- General and the 



43 



foreign powers in relation to matters other than 
treaties. (5.) By the exercise of Judicial authority 
by the States-General in matters arising in New 
Netherland. (6.) By the recognition of the previous 
authority of Holland by the English, after the sur- 
render in 1664 and again in 1074." 

We have quoted their language word for word in 
full, and on it judgment might be asked in favor of the 
English claim. For conceding that every one of the 
six propositions could be jjroved as fully as might 
be presumed from the statement there is nothing 
whatever that in the slightest degree invalidates the 
preceding argument which leads inevitably to the 
detennination that England by right of discovery 
and possession became and never ceased to be the 
sovereign of New York. 

But such argument is deserving of respectful and 
detailed consideration and the more it is con- 
sidered the weaker will the Dutch case appear. 

(1). In 1643 the eight men who have been hereto- 
fore mentioned subscribed their petition "your High 
Mightinesses' faithful servants and subjects." The 
petition of the Commonalty in 1649 was addressed 
to the States-General " our Most Excellent Sover- 
eigns," and its appendix to " our Most Serene 
Sovereigns." The address of the colonists deter- 
mines nothing. Agency and tenancy are not 
established by the declarations of the agents and 
tenants to bind third parties. For the question 
is not what they called themselves but what they 
were. 

(2). Under the second head they cite orders of the 
Dutch Government in the affairs of the Dutch West 
ladia Company and in the affairs of individuals. 
No one disputes that the Dutch West India Com- 
pany was incorporated by the States-General, and 
consequently the government had control over its 
affairs. Does legislation over the affairs of the 



44 



New York Central Road make its tenants citizens 
of the State of New York ? Does the appointment 
of government directors in the Union Pacific Rail- 
road make it a national road 'i If the law of New 
York required the appointment of the president of 
the elevated road by the State, and that he should 
swear allegiance thereto, would that make the road 
over which he presided the property of the State 
audits servants State officers '< Besides these, there 
were two instances in which the State interfered in 
private affairs, first in 1641 and again in 1652, author- 
izing particular individuals to devise property in 
New Netherland. Hollanders in their native land 
and in its colonies where they owned the soil must 
have had by general law power to devise, and this 
express request and grant must have been a recog- 
nition that no such power existed here These two 
cases were covered by the terms of one of the articles 
of capitulation in 1554, of which we shall speak here- 
after. 

(3). Under the third claim there are four prin- 
cipal subdivisions — purchased from Indians, grants 
by the Company, Stuyvesant's title, and declarations 
in 1673^from tiie conquest to the surrender. The 
Indian grant recitals were substantially as follows : 
" We the Director and Council of New Netherlajid 
on the Island of Manhattan in Fort Amsterdam, 
under the jurisdiction of their High Mightinesses' 
the Lords, the States-Cleneral of the United Nether- 
lands and the General Incorporated West India 
Company do by these presents : publish and 
declare, that on this day, the date under 
written before us, in their proper persons 
came and appeared, &c." The utmost that such 
grants could convey, as has been decided by the Su- 
preme Court, is a usufructuary use (void iu this case); 
but waiving that qnestion, it nowhere ajipears that 
the States-General or the Company ever knew of 
his assum^jtion on the part of the Governor who 



45 



had no authority to use the State's name. The 
same is true in the title used by the Governor in his 
colonial court and in the private grants. There no- 
where appears either the slightest authority, knowl- 
edge or recognition for, or of, the bombastic rhet- 
oric of the conceited Governor who was only a 
servant of the Company and had no right to use the 
name of the State. The last stand on a different 
footing. The conquerors had the right to speak in the 
name of the States-General then, and from thence- 
forth until the end of their occupation ; but that 
did not affect the past and gave them no authority 
to make any declarations of the past; it was no iDart 
of the res gestce, as the courts would say. 

(4). Under this heading two instances, the William 
and the Eendragt, are given as showing English 
recognition of Dutch sovereignty. In the first the 
Dutch Ambassador wrote to his Government that 
complaint had been made to him about the exclusion 
of the English from the Hudson, thus recognizing 
the control and authority actually possessed by the 
States-General in New Netherland is the inference 
drawn therefrom. In other words if an American 
citizen were driven from the coast of Spain by an 
English ship and should make complaint and the 
British minister should write to his own government 
that complaint had been made to him about the 
matter, that would be American recognition of Eng- 
land's authority in Spain. Not by any means. It 
recognized that the trespassers were subjects of the 
power from which they demanded compensation. 
So the admission that the Dutch were in possession 
without right, was a declaration that they were tres- 
passers and intruders who were to be removed by 
the States-General. 

(5). The Dutch undoubtedly did exercise judicial 
authority in New Netherland in cases of a personal 
character— as are all cited — and perhaps also relating 



46 



to realty; so did the Confederate States, in the time 
of their usurpation ; so has been done everywhere by 
organized mobs and rebels ; so it is among the ban- 
ditti ; but when the force that sustains such exer- 
cise of authority disappears the judicial authority 
vanishes. 

(6). The confirmatory grants did recognize that 
previous grants had been made and for a good con- 
sideration confirmed them. Parallel instances fre- 
quently occur in real estate titles at the present day. 
A buys of B land which in fact C owns. He then 
purchases of C the real title and takes a deed con- 
firming his title and possession. No one for an 
instant would dream of asserting that C thereby 
recognized that B was the true owner. 

These are the facts, a beggarly array, on which 
those who have a personal professional interest in 
iipholding the Butch title rely. 

In opposition to all the acts of the Dutch from 
which title might be presumed, one omission is very 
significant. When Cabot first landed he took posses- 
sion of the continent in the presence of witnesses on 
behalf of the English sovereign; so did Ralegh's 
colonists at Roanoke; so did Columbus on behalf of 
Ferdinand and Isabella; so did De Soto and all the 
great discoverers. This became so universal that 
Lord Stowell in The Fama, 5Robt. Adm. R., said: 
" Even in newly discovered countries where a title 
is meant to be established for the first time, some 
act of possession is usually done and proclaimed as 
a notification of the fact." This the Dutch never 
did in New York. This was not omitted through 
ignorance. For when they subsequently took pos- 
session of the land on the South River, as they called 
the Delaware, they placed upon a pole a piece of tin 
stamped with the Holland arms to signify its sover- 
eignty there. 

There is also a little law ol which they make much, 
but which is without authority. 



47 



Judge Murray Hoffman wrote a treatise on the 
Estates and Rights of the Corporation, a self-im- 
posed task, which however vahiable in its informa- 
tion had not the least claim to authority. In it he 
says: "It cannot be questioned at this day that 
the rirflit of discovery and occupation of New Nether- 
land, and particularly of Manhattan Island, was in 
the Dutch, and that the claims of the English were 
unfounded." And more of the like dogmatic and 
unsupported assertion. And this he says with full 
knowledge of Chief -Justices Marshall and Taney's 
opinions. 

Oftentimes a bold and unblushing falsehood de- 
ceives the very elect. It was so in this respect. There 
came before the Court of Appeals the case of Dun- 
ham vs. Williams, 37 N. Y., 251, involving a Dutch 
title at Flatbush. The arguments of the counsel 
engaged were considered by the reporter to be too 
insignificant to be reported. Judge John K. 
Porter wrote an opinion which inf erentially said that 
the Dutch did have title here before the capitulation, 
citing therefor three authorities, one from Louisiana, 
which might expound the civil law, but not the 
Dutch rights here; another argument of Charles 
O'Conor, which quoted Hoffman, and then Hoffman. 
So when it came to the crucial test it is Hoffman 
unadulterated and unsupported. Turning to Mr. 
O'Conor's argument he will be found to have ex- 
pressed himself thus guardedly : " This colony was 
first settled by Holland and was consequently gov- 
erned de facto at the time of its settlement by the 
civil law." The italics are his. He subsequently 
denied that the Dutch ever had a title here. 

In the case of the Canal Company vs. The People, 
5 Wend., 445, Chancellor Walworth says : "It is a 
matter of history that this province was always 
claimed by the English by right of discovery and 
not as a conquered country, and that no part of the 
civil law as such, except that which was dei'ived 



48 



from England, has ever been in force in this colony. 
The province was granted to the Duke of York as 
jiart of the domain of the crown, several months be- 
fore the surrender to Sir Richard Nicholls and before 
any attempt had been made to take possession by 
force. The guaranty to the Dutch settlers of the 
peaceable enjoyment of their possessions did not 
alter the nature of the British claim to the country. 
It was a just and wise policy on the part of the 
Duke's Government; by it he retained in the colony 
a great number of industrious, intelligent and valu- 
able inhabitants, of whom and their descendants 
even at this day the State has much reason to be 
proud. After a short struggle they submitted 
peaceably to the Duke's claim, and subsequently 
they obtained patents from the crown for the lands 
they originally held. The territory being thus 
claimed and established as a British colony, the 
common law of England became the fundamental 
law of the province." 

In Canal App. vs. People, 17 Wend., GU9, the 
Court says of a patent there under consideration : 
"The original Dutch grant being made, the civil 
law which prevailed in Holland, and which if 
brought to this State by the Dutch," &c. Mark 
the if ! 

In Mayor vs. Hart, 95 N. Y., 450, Finch, J., uses 
this language in relation to a grant made in 1666, 
two years after the grant to the Duke of York : 
" We must assume such to have been the common 
law at the date of the grant. Two years earlier the 
Dutch had surrendered Amsterdam to Col. Nicholls, 
who with an armed force asserted the right and 
authority of the Duke of York and the English 
Government. The common law of England entered 
the city with him." That assertion was suflicient for 
the case before the Court, and cannot be construed 
as deciding that it was not here before, for that 
question was not before the Court. 

Gould M. Hudson River R.R., 6 N. Y., 522; 



49 



People vs. Canal Company, 33 N. Y., 461, and 
People vs. Ferry Co., 68 N. Y., 71, have no refer- 
ence to the Dutch. They involve only the common 
law right of navigable waters. 

In U. S. vs. Perot, 98 U. S. (80th), 428, and in 
Freemont vs. U. S., 17 How., 542, the judicial notice 
which the Court is bound to take of the antecedent 
law was Spanish, a legal, regular and recognized 
aiithority, not the law of a usurper. Would the 
Supreme Court take judicial notice of Confederate 
laws ? 

Some stress has also been laid upon certain remarks 
of England's greatest jurist, Lord Mansfield, in the 
celebrated case of Campbell ih'i. Hall (1 Cowp., 211; 
20 State Trials, 239), as militating against the Eng- 
lish claim. 

That case was so complicated and important that 
it was elaborately argued four times before a deci- 
sion was rendered. It involved the validity of a 
tax imposed upon exports from the island of Gra- 
nada, imposed by the King of England after it had 
been taken by the British arms in open warfare 
from the French King. Cases of conquest, includ- 
ing the conquest of New York from the Dutch, were 
instanced by Lord Mansfield as showing historically 
the right of the conqueror to lay down the law for 
the vanquished, and the nature and extent of that 
right. This was his language : 

" After the conquest of New York, in which most 
of the Dutch remained, King Charles II. changed 
the form of their constitution and political govern- 
ment by granting it to the Duke of York, to hold of 
his crown under all the regulations contained in the 
Letters Patent. No question was ever started be- 
fore, but that the King has a right to a legislative 
authority over a conquered country." 

The error that has been made is in applying this 
first sentence quoted to the first grant to James in 
1664. Tlie error is manifest when it is observed that 
he is speaking of conquest and a conquered country 



50 



as applied to open warfare between the French and 
English. The grant in 1664 was made in a season of 
profonnd peace not after conqnest, but in 1674, after 
a brief but bloody struggle in which the English had 
sustained a series of humiliating defeats and had 
been compelled to sue for peace, and therefore the 
illustration was opposite to the case under consid- 
eration. 

Another line of argument has been adopted by 
Mr. Richard Webster, who says in an opinion in 
the Lauderdale Peerage Case : 

"Very inconvenient legal consequences may flow 
from a successful maintenance, in the United States 
at least, of the contention that English dominion 
and sovereignty over Manhattan Island and the Pro- 
vince of New York and all the lands therein were 
valid and complete in 1609, when Henry Hudson 
arrived, and continued valid and complete down 
to 1664, and that the Dutch during all that pej-iod 
wei"e mere intruders. For if English dominion, 
sovereignty and title were thus valid and com- 
plete, then by the accepted rules of public law, 
both English and American, the aboriginal In- 
dians had from 1609 to 1664 no right, without 
English permission, to convej^ any portion of their 
lands to Holland, its officers, subjects or citizens, 
and therefore all titles to lands depending solely on 
such grants or conveyances were and are null and 
void." 

Inconvenient legal results cannot determine the 
administration of law, and none can flow from the 
successful maintenance of English sovereignty over 
this territory on account of making Indian titles 
null and void, for there are no such titles, the law 
of nations having always been that the Indians had 
none to convey. His protest, however, involves the 
concession for which we have contended, that the 
Dutch obtained nothing from the Indians if the 
English had any rights whatever. 

No Judge has made a more prolonged or thorough 



51 



study of the early history of New York than Judge 
Truax. The question of the Dutch title has been be- 
fore him thrice in his judicial capacity. As a de- 
scendant of the issue of the first marriage ever cele- 
brated in the colony his personal prejudices or pre- 
delictions could not have been hostile to the Dutch. 
In Mortimer vs. N. Y. El. E.R., 6 N. Y. Supplement 
898 he presents an admirable condensed statement of 
the situation, and concludes : ' I am of the opinion 
that the fee of the Bowery and of the other streets 
in the City of New York that are known as Dutch 
Streets never was in the Dutch government ; and 
that it was prior to the Revolution bound by the 
rules of the common law and not by the rules of the 
Dutch civil law. While the Dutch were in actual 
possession this execution of the common law was 
suspended, just as during the late Eebellion the 
execution of the laws of the United States could not 
be enforced in some of the Southern States." 

In a concurring opinion Judge Freedman says m 
reference to the authorities cited by Judge Truax : 
" These decisions proceeded upon the theory that the 
claim of the Dutch was contested by the English 
from the very start, not because they questioned the 
title given by discovery, but because they insisted 
on being themselves the rightful claimants uncler 
that title, and that the claim of the English was tm- 
allv decided in their favor by the sword. That be- 
inc^ so it follows that in contemplation of present law 
neither the Dutch nor the Roman law ever prevailed 
in the State of New York dejvrenud that the com- 
mon law of England must be deemed to be the com- 
mon source of all our law." 

In the equity case of Hine vs. El. R.R. depending 
in the Superior Court recently decided. Judge Truax 
amplifies the history he gave in the Mortimer de- 
cision by citations from Ogelby's America, the His- 
torical Society Publications, Hakluyt and Kohl s 
History of Maine, all of which are in confirmation 
of what he had previously written. 



52 



The opinions delivered by Judge Truax in the first 
two cases above cited were so convincing that the 
General Term of the Supreme Court in tlie law case 
of Hine vs. El. R.R. depending in that Court, unani- 
mously reversed a judgment dismissing the com- 
plaint pronounced by Van Brunt, P. J., who held 
that the Dutcli Roman law prevailed here. This 
reversal was based upon those decisions. 

So the weight of authority is on the English side. 
These decisions have been made after a full discus- 
sion of all the earlier decisions and with an exhaus- 
tive review of the historical facts. For, however 
weighty the opinion of the Courts may be in dispos- 
ing of questions of law, they cannot bind in histori- 
cal or scientific matters. They adjudicate upon the 
facts as they are known and are as liable to error as 
the Court of the Inquisition in the trial of Gallileo. 

What is the practical result of this discussion 1 

The counsel for the Elevated Railroad, if we under- 
stand him correctly, answers that it is nothing that 
he is willing to concede all for which we contend ; 
it is true that under tlie common law the rights of 
property owners adjoining liighways extends to the 
centre, but under the Dutch law they are limited to 
the side, and as the grant was made by the Dutch 
authorities it must be construed according to Dutch 
law and the English confirmative deed ratified only 
what had been previously obtained. 

In other words, although we admit that the Dutcli 
were squatters and had no rights de jure you must 
treat them as rightful sovereigns. For if they were 
the legal owners no more could be claimed. 

An exact statement carries its own refutation. 

This must be the law governing such a case ; the 
common law of England always prevailed here 
although not always recognized. The Dutch gover- 
nor was a private individual, granting property on 
English soil, and consequently the grant extended 
to the centre of the highway under English law ; 
just as if the man had been in England. 



53 

What force then do you give to the de facto gov- 
ernment ''. Do you not ignore it altogether in such a 
construction '>. Not entirely— when the English re- 
sumed their rightful authority, yes; while the 
Dutch held possession, no. They could then use 
the highway as if they were its rightful owners ; this 
and nothing more. 

The language of Mr. O' Conor in Wetmore v*. 
Story, 22 Barb., 440," that when Britain expelled 
the intrusive power of Holland and resumed her 
lawful possession* she adopted the existing settle- 
ment, with its existing customs," is cited against 
this proposition, and if the adoption were as broad 
as Mr. O'Conor states it, and the word " customs " 
could be construed to mean all the Dutch laws, there 
might be some force in it. But it is not necessary 
to construe the word, for it has its own limitation, 
and the law of eminent domain is thereby excluded. 
This was the provision in the Articles of Capitula- 
tion in 1664 : 

" XI. The Dutch here shall enjoy their own cus- 
toms concerning their inheritances." 

It is not necessary to discuss the distinctions be- 
tween the vicBpuMica and the vice mcinales, the 
highways and byways or country roads, and nothing 
could be added to the brief of Mr. Van Nest on that 
subject. Nor is it necessary to pursue the line of 
argument so ably presented to the Court by Mr. 

Cowles. 

It is conceded that the historical question which 
the Court takes judicial notice of, Hunter vs. N. Y. 
C. & W. R.R., 116 N. Y., 615, underlies and deter- 
mines the whole matter if the Conrt of Appeals 
entertains the views herein expressed, and as to 
that there can be no reasonable doubt. 

The City of New York has had the most romantic 
legal history of any place on earth. Its title was 
acquired by England by original discovery ; the 
grant to Cabot reverted to the Crown by his death ; 
the grantto Raleigh escheated on judgment in at- 



54 



taiuder ; the grant to Virginia was cancelled by quo 
warranto proceedings ; the grant to New England 
Avas voluntarily surrendered ; the title of the Dutch 
in 167^5 was acquired by conquest in 1674; and the 
grant to James passed to the Crown on his accession 
to the throne. Tiiere was one other possible trans- 
mission which did not take place, England never 
bought it. Hers by original right, hers it continued 
to be until 1678, and her laws governed it (except for 
a few months in 1673 and 1674\ until it was wrested 
from her by suci-essful RevolutiuHj^iii 1776. when the 
United" States became a nation. ^ 



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